that the children of any son or daughter who died | the local act, then another question arose, by far the should take such share as their parent would have most important question ever discussed in these taken. One-fourth, therefore, must be considered as courts, namely, whether a marriage, per verba de distributed under the final clause, and in this manner præsenti, before a person, priest or not, in our colonies, one-fourth, and the fourth of one-fourth, is to go to would or would not be null and void to all intents and each of the three children, and the remaining one- purposes, so as to call upon the Court to pronounce a fourth to the six children of Charlotte, who died. sentence of nullity? He should be reluctant to determine such a question without the benefit of the argument of counsel; the course he should pursue, therefore, was this:-he should take time to consider the first question, whether the marriage was or was not null and void under the local act? And if he should be of opinion that it was not null and void under the local act, then the other question must be argued. Ecclesiastical Courts. CONSISTORY COURT. Wednesday, July 16. (Before Dr. LUSHINGTON.) CATTERALL r. CATTERALL. No words in a statute as to marriage, though prohibıtory and negative, can be held to infer a nullity, unless that nullity be declared by the Act. Prohibitory words in Marriage Acts, without a declaration of nullity, do not create a nullify. Therefore, when A and B were married in New South Wales on July 29, 1835, by L, an ordained minister of the Church of Scotland, neither of the parties being a member of or in communion with that church, nor signing a declaration to that effect, in pursuance of the Colonial Act requiring such declaration, such marriage was not null and void. This was a question as to the admission of the libel in a suit of nullity of marriage promoted by Mr. James Catterall against Georgiana Ann Sweetman, calling herself Catterall. The parties were married at Sydney, New South Wales, on the 29th of July, 1835, the marriage being solemnized by Mr. Lang, an ordained minister of the Presbyterian Church of Scotland in that colony. By an Act which had passed the Legislature of New South Wales, to remove doubts as to certain marriages within the colony, it was declared and enacted, that from the passing of the Act all marriages between parties both or either of whom should be members of and holding communion with the Presbyterian Church of Scotland, solemnized by an ordained minister of that church, should be of the same validity as if solemnized by a clergyman of the Church of England according to the rites and ceremonies of that church, provided that both parties signed a declaration in writing that one or both of them was or were a member or members of and held communion with the Presbyterian Church of Scotland, and the minister solemnizing the marriage certified the facts upon the written declaration, and transmitted the same to a certain officer. In the present case, the libel pleaded that none of these conditions had been fulfilled; that neither of the parties was member of the Church of Scotland, both being members of the Church of England; and that they had signed no declaration to that effect; and upon this ground it pleaded that the marriage, or pretended marriage, was null and void. JUDGMENT, statute. THE LEGISLATOR. Summary. NOTHING else is talked about save the manner in which Parliament is to meet the avalanche of private Bills which is preparing to descend upon it. We suspect the remedy will be very summary. Early notice will be given that only the suspended Bills of last Session will be considered, they being amply sufficient for six months of hard work. There are two reasons why this course should be pursued; first, it will be a convenient method of permitting the present mania to die away gradually, and gradually to bring about the removal of so much capital from present investments in railroads; and secondly, in all probability there will be a dissolution of Parliament in the autumn, in which event, as Bills cannot be suspended as they were at the close of the last Session, the parties must incur the cost of commencing de novo. Now if they take only the suspended Bills, they will be cleared off, and the difficulty will be removed at once. lature as creating a nullity. If this be correct, the act of New South Wales must be construed as an act in pari materia. There was another reason. The Colonial Act was framed from the 58th George 3, c. 84, as to Presbyterian marriages in India, and if the present marriage was void, it would be a precedent for avoiding similar marriages in India. It was clear that all the directions and prohibitions and nullities (if nullities) in the act relating to India apply only to ordained ministers of the Church of Scotland who are also chaplains; all other marriages by ordained ministers of that church were out of the benefits and prohibitions. This would be a strange state of things. And it was a question whether there was not a similar restriction in this very statute. What was the meaning of "duly empowered oy his proper July 16.-Dr. LUSHINGTON pronounced sentence. superior authority?" A marriage by ar ordained It was a suit instituted by Mr. Joseph Catterall against minister of the Church of Scotland, not duly emGeorgiana Anna Sweetman, to obtain a decree of nul- powered, would be out of the provisions of the act, lity of marriage, and the present question was as to one would, if irregular, be left to the common law the admissibility of the libel. It pleaded that the the other would be null and void. In fact, it would parties were married in New South Wales, on the come to this,-that a marriage wholly deficient in 29th of July, 1835, by Mr. Lang, an ordained minis- ceremonies would stand in a preferable position to a ter of the Church of Scotland; that neither of the marriage where a part only of the prescribed cerepartics was a member of, or in communion with, that monial was omitted. In any case of doubt this Court church, and that they did not sign a declaration to ought not to pronounce a marriage null and void, and that effect; whereas, by an act passed in the colony in this case he entertained the gravest doubt. As the in July, 1834,"to remove doubts as to the validity legislative nullity was the only ground upon which of certain marriages had and solemnized within the the libel stood, it must be rejected, unless the party colony," it was enacted, "that all marriages between were desirous to amend, by pleading that the marpersons, both or one of such persons being members riage was null and void by the law antecedent to the or a member of or holding communion with the Presbyterian church of Scotland or the Roman Catholic church respectively, and making a declaration to the effect hereinafter mentioned, which marriage shall be had and solemnized within the colony by an ordained minister of the Presbyterian church of Scotland or by a priest or minister of the Roman Catholic church duly empowered by his proper superior respectively, shall be and be adjudged, esteemed, and taken to be of the same force and effect as and no other than if such marriage were had and solemnized by clergymen of the Church of England, according to the rites and ceremonies of the Church of England; provided always that no such marriage shall be had and solemnized until both or one of such persons, as the case may be, shall have signed a declaration in writing, in duplicate, stating that they, or he, or she, as the case may be, are or is members or a member of, or hold communion with, the Presbyterian church of Scotland or the Roman Catholic church respectively." The libel alleged the marriage to be null and void for non-compliance with the requisites of this local act. The learned judge observed, that this being a question which might have the effect of bastardizing issue, the presumption of law was in favour of the admitted marriage de facto. The question mainly hinged upon the proviso in the local act. The object of a proviso: is generally to qualify something before, and the point was, whether, if the directions of the act were not followed, the proviso took away only the benefit before conferred, or rendered the whole act done (that is, the marriage) null and void. The words in the proviso were negative words, and prohibited such marriage without the prescribed requisites, and no doubt disobedience to this law was a punishable offence; but whether the marriage itself was void, or only Of the Sessions 8 Victoria. deprived of the validity given by the act, was a [In this record of actual Legislation, we adopt the plan of question of the greatest difficulty. Prior to Lord giving the titles alone of the statutes of no general or profesHardwicke's Marriage Act, there was no statut-sional interest; and analyses of the more important changes able nullity; regulations of marriages, and pu- tutes only as are of particular interest to our readers.] in the law, printing at length such statutes or parts of stanishments for disobedience were prescribed; but there was no clause creating a nullity; and the 7 & 8 Wm. 3, c. 35, shewed that the Legislature considered that no nullity was created by the 6 & 7 Wm. 3, c. 52. This was a statutory recognition that, as related to marriage, prohibitory words did not necessarily create a nullity. The Act of Lord Hardwicke was passed for the very purpose of creating a nullity. In many cases, not relating to marriage, negative terms like those in the local act rendered what was done in disregard of them null and void. Thus in Davison v. Gill (1 East, 64), Lord Kenyon held that where a form was prescribed by an Act of Parliament for turning a road, non-compliance therewith rendered all the proceedings void. Marriage, however, was Addams. contend that this marriage is not distinguished from all other subject-matter. In Lord good, as being not in conformity with the lex loci, and Hardwicke's Act it is required that, in all cases where as not having been solemnized by a person in holy banns shall have been published, the marriage shall orders. The local act was confined to marriages be- be solemnized in one of the parish churches or chapels tween members of the Presbyterian Church of Scot- where such banns have been published, "and in no land and Roman Catholics; these parties are mem- other place whatsoever." These words are both affirbers of the Church of England, and none of the es- mative and negative and prohibitory; and in the only sential requisites of the act were complied with. It case where the question had been discussed whether is clear, therefore, that the marriage cannot be good the infringement of such directions rendered the maraccording to the lex loci. It is not necessary that the riage null and void, namely, Stallwood v. Tredger (2 act should declare that, without a due compliance Phill. 287), the decision, though not in point, did not with the requisites, the marriage should be void; by clearly import a nullity in case of disobedience. From forbidding marriages without such forms, it implies his examination of authorities he drew two conclusions that non-compliance renders them null. Under the first, that there had been no decision that any words general law, the marriage of two persons, members of the Church of England, solemnized by a Presbyterian minister in England, would not be valid. Dr. LUSHINGTON said, the question in this case was one of law, not of fact. If he should be of opinion that the marriage was not null and void under a The QUEEN'S ADVOCATE, in opposition to the libel, contended that the facts pleaded did not invalidate the marriage, either under the lex loci or the general law. The local act contained no express provision that a marriage should be void if the directions given by the act were not complied with. Non-compliance with the provisions of the act might subject the parties to punishment, but it did not render the marriage null and void. Suppose any one of the regulations of the act were neglected, such as signing one copy of the declaration instead of two, which was a matter of regulation, would that invalidate the marriage? If this marriage was declared null and void, it was impossible to foresee the consequences; it would open a very wide question, as large and important as in that of The Queen v. Milles. Addams, in support of the libel.—It has been settled by the House of Lords, in Reg. v. Milles, that a marriage is not good unless solemnized by a person in holy orders. Dr. LUSHINGTON.-The case of Reg. v. Milles settled the question so far as that a party to such a marriage could not be indicted for bigamy; but the House of Lords did not go so far as to pronounce such marriage not good for all intents and purposes; they carefully guarded themselves against going fur ther. in a statute as to marriage, though prohibitory NEW STATUTES (Continued from page 5.) 45. Power to straighten boundaries.-That for the purpose of shortening or rendering straight any boundary fences between the land to be inclosed, and any adjoining lands, it shall be lawful for the valuer acting in the matter of any inclosure, with the consent in writing of the person interested in such adjoining lands, to set out and determine the boundaries between the land to be inclosed and such adjoining land, or to draw and define a new line of boundary, as he shall judge proper, for the purposes aforesaid; and after such boundaries shall have been so set out and determined as aforesaid, or such new line of boundary drawn and defined, the same shall be made, fenced, ditched, or mounded by such person, in such manner, and at such times as the valuer shall direct, and shall for ever thereafter be deemed the boundaries and limits of such respective lands. 46. Valuer to hold meetings.-That the valuer, acting in the matter of any inclosure shall, from time to time hold such meetings for the examination of claims, and otherwise in the matter of such inclosure, as occasion shall require, and shall cause notice to be given on the church door, and also like notice to be given by advertisement, of the time and place of the meeting in the matter of such inclosure, and of each subsequent meeting, in the like manner, fourteen days at least before such respective meeting (meetings by adjournment only excepted); and if from any cause the valuer shall think fit to adjourn or postpone any such meeting, it shall be lawful for him to adjourn or post. pore such meeting to any future day. 47. Claims to be delivered in writing.―That all persons claiming any common or other right or interest in any land proposed to be inclosed as aforesaid shall deliver such claims in writing to the valuer acting in the matter of such inclosure, at such meeting as the valuer shall appoint for the purpose, stating the several particulars in respect whereof such claims are made, and distinguishing the claims in respect of freshold, copyhold, customary, and leasehold property from each other, and mentioning therein the places of abode of the respective claimants, or their agents, at which notices in respect of such claims may be delivered, and no such claim shall be received by such valuer after [the last meeting to be held for that purpose (of which notice shall be given), except for some special cause, to be allowed by the commissioners. 48. Statement of claims to be deposited for exami nation. Claims to be heard and determined by valuer, subject to appeal to commissioners.-That a statement of all claims in the matter of any inclosure which shall have been delivered to the valuer acting in the matter of such inclosure, as hereinbefore provided, shall be made, and deposited by him at some public place within the parish in which the land to be inclosed, or the greater part thereof, shall be situate; and the valuer shall give notice on the church door of such parish and by advertisement of such statement having been deposited, and shall in such notice limit such time for the delivery of objections to claims as the commissioners under the circumstances of each inclosure shall think reasonable, and by order under their seal direct, or in case no direction shall have been given by the commissioners in this behalf, then such time as the valuer shall think reasonable, not being less in any case than twenty-one days after such notice shall have been given; and every person who shall object to a claim shall deliver his objection in writing to the valuer, and also deliver a copy of such objection at the place of abode of the claimant or his agent within the time limited for delivery of objections to claims as aforesaid; and no objection to any such claim shall be received by the valuer after the time so limited for the delivery of objections to claims, unless for some special cause to be allowed by the commissioners; and after the time limited for the delivery of claims shall have expired, the valuer shall cause fourteen days' notice to be given of the time and place of the meeting for the examination of such claims, and for the attendance of all parties concerned therein; and at such meeting the valuer shall proceed to examine into and determine such claims, and shall and may allow or disallow the same, in whole or in part, and make such order therein as to him shall appear just; and in case any doubts or difficulties shall arise respecting such claims, or any differences shall happen between any of the claimants touching their respective claims, or the relative proportions of their rights and interests, the valuer shall determine the same, and shall make such order therein as to him shall appear just, which order shall be final, unless any party shall be dissatisfied with the determination of the valuer, and shall give notice, as hereinafter provided, of his desire to have the claim or matter heard and determined by the commissioners or an assistant commissioner, or in case the commissioners shall think fit to revise such determination, under the power hereinafter contained; and in case the valuer, on the determination of any claim which shall have been objected to as aforesaid, or if any objection which shall have been made to any claim, shall see cause to award any costs, it shall be lawful for the valuer, upon application, to assess and award such costs as he shall think reasonable to be paid to the person in whose favour any determination shall have been made, and by the person whose claim or objection shall have been disallowed; and in case any person liable to pay such costs shall neglect or refuse to pay the same upon demand, or within fourteen days thereafter, the valuer shall, by warrant under his hand and seal, directed to any person or persons whomsoever, cause such costs to be levied by distress; and if there shall be no goods or chattels whereon to levy such costs, it shall be lawful for the person in whose favour such costs shall be awarded to recover the same by action of debt or on the case, in which action it shall be sufficient for the plaintiff to declare that the defendant is indebted to him in the sum specified in the order of adjudication made by the valuer, and in consequence of such order, without setting forth any other proceedings under this Act: provided always, that the valuer may pay the expenses of any witnesses, of the production of any writings, maps, plans, and surveys, or copies thereof, where such witnesses shall attend, or such maps, plans, surveys, or copies thereof shall be produced before such valuer, only on the request and for the information or guidance of the valuer (and not on behalf of any party in difference), such last-mentioned expenses to be considered as part of the expenses of the inclosure. 49. Tilles not to be determined by valuer, commissioners, or assistant commissioners.-Provided also, That nothing in this Act contained shall extend to enable the valuer, or the commissioners, or any assistant commissioner, to determine the title of any lands, or to determine any right between any parties contrary to the actual possession of any such party cases (except in ditament. 50. Encroachments within twenty years.-That all encroachments and inclosures, other than inclosures duly authorized by the custom of any manor of which such land shall be parcel, or otherwise according to law, which shall have been made by any person, from or upon any part of the land proposed to be inclosed, within twenty years next before the first meeting for the examination of claims in the matter of the inclosure thereof, whether any amerciament, rent, or money payment or acknowledgment shall or shall not have been paid or made in respect of the same, to or for the use of the lord of the soil or any other person, shall be deemed parcel of the land subject to be inclosed, and shall be divided, allotted, and in closed accordingly: provided always, that in case, under the circumstances of any such encroachments or inclosures, it shall appear to the commissioners just or reasonable that rights or interests in the lands to be inclosed should be allowed to the persons in possession of such encroachments or inclosures, it shall be lawful for the commissioners, either in the instructions to the valuer, or by an subsequent order under their seal, to direct what rights and interests, either absolute or for any limited terms or estates, should be al'owed in respect of such encroachments, and the valuer shall allow and declare such rights accordingly: provided also, that it shall be lawful for the several persons who shall be in possession of any such encroachments or inclosures, or in the receipt of the rent thereof, at the time of the determination of claims under this Act to take down or remove all such buildings, fences, and other erections as shall then be thereon, and to convert the materials thereof to their own use, within two calendar months after notice in writing signed by the valuer given to such respective persons, or posted on the church door; and in case any dispute or difference shall arise touching any such encroachments or inclosures, or as to the extent thereof, such dispute or difference shall be determined by the valuer. 55. Schedule of claims allowed by valuer to be made and deposited for inspection. Claims may be reheard by commissioners or an assistant commissioner.-That after the valuer shall have heard and determined all claims and objections which shall have been made in the matter of an inclosure he shall cause a schedule of such claims and objections, and of his determinations thereon, to be deposited, and to remain for thirty days at the least, for the inspection of all persons interested therein, at some public place within the parish in which the land to be inclosed, or the greater part thereof, shall be situate, and shall cause notice to be given on the church door of such parish, and by advertisement, of such deposit, and shall also send a copy of such schedule to the commissioners, and shall furnish any explanations or information in relation thereto to the commissioners, as they shall require; and in case any party dissatisfied with any determination of the valuer as aforesaid shall, within thirty days next after notice by the valuer of such deposit of the said schedule, cause to be delivered to the commissioners notice in writing of such dissatisfaction, and of the desire of such party to have the claim or matter so determined by the valuer heard and determined by the commissioners or by an assistant commissioner, or in case the commissioner shall, on the representation of any persons interested in such inclosure, or on the information given by the valuer in relation to such schedule, be of opinion that all or any of the determinations of such valuer shall have been made without due consideration of the legal rights of the parties interested, or shall be erroneous, then and in any such case the commissioners shall forthwith give notice, in such manner as they shall think fit, appointing some convenient place and time for holding a meeting to hear and determine the claim or matter which shall be so desired to be reheard, or all or any of the claims or matters which shall be mentioned in the said schedule, as the commissioners. shall think fit; and the commissioners or any assistant commissioner specially empowered for that purpose, shall rehear and determine such claim or matter; and the determination of the commissioners or such assistant commissioner shall be final and conclusive, and shall be binding on the valuer acting in the matter of such inclosure, unless any party dissatisfied therewith shall try his right by an issue at law, as 51. School-houses, &c. not to be deemed encroach-hereinafter provided. ments.-Provided also, That in case any such land 56. Appeal against determination of the commissioners. shall have been taken or used, at any time before-Provided always, That if any person claiming to such first meeting for the examination of claims, for be interested in any land proposed to be inclosed the erection of a school-house or the appurtenances thereto, or for other such purposes as in the opinion of the commissioners shall be charitable or parochial purposes, such land so taken or the erections made thercon, shall not be taken or deemed to be of the nature of an encroachment within the meaning of this Act; but where such land shall have been so taken for the purposes aforesaid within twenty years next before such first meeting for the examination of claims, it shall be lawful for the commissioners, where it shall appear just and desirable for the purposes of inclosure, to direct that such land be deemed parced of the land subject to be inclosed, and be divided, allotted, and inclosed accordingly, and that compensation be made to the persons in possession thereof, or to trustees for the purposes for which such land shall have been so taken or used, by adequate allotments of the lands so be inclosed. under this Act shall be dissatisfied with any determination of the commissioners or assistant commissioner concerning any claim or interest in or to the land proposed to be inclosed under the powers hereinbefore contained, and shall cause notice in writing of such dissatisfaction to be delivered to the commissioners within thirty days next after notice of such determination shall have been given to the several parties or persons specially interested, if any such there be, it shall be lawful for such person so dissatisfied, and giving such notice as aforesaid, to bring an action upon a feigned issue against the person in whose favour such determination shall have been made, or against the commissioners, and to proceed to a trial at law at the then next assizes, or at the assizes immediately following such next assizes, to be holden for the county wherein the land relating to which such dispute shall arise shall be situate; and the 52. Encroachments of twenty years' standing to be defendant in such action shall, upon being served with deemed ancient inclosures.-Provided always, That all the usual process therein, appear thereto, and accept lands which shall have been inclosed from any land one or more issue or issues, whereby such claim, and subject to be inclosed under this Act for more than the right and interest thereby insisted upon, may be twenty years next preceding the day of the first tried and determined, such issue to be settled by the meeting for the examination of claims in the matter proper officer of the court in which the said action of such inclosure, shall for the purposes of this Act shall be commenced, in case the parties shall differ be deemed and taken to be ancient inclosures, but about the same; and the verdict given upon the trial not so as to carry any right of common, or compen-of such action shall be binding and conclusive upon sation or allotment for or in respect of right of common, which might be claimed in respect of ancient inclosures. all parties thereto, unless the Court wherein such action shall be brought shall set aside such verdict, and order a new trial to be had; and after such verdict shall be given, and final judgment obtained thereon, the commissioners shall act in conformity thereto, and allow or disallow the claim thereby determined according to the event of such trial; and the costs attending any such action shall abide the event of the trial. 53. Rights in respect of tofts to be allowed.-That all tofts, foundations, or sites of ancient commonable messuages or cottages, shall, upon proof being made to the satisfaction of the valuer acting in the matter of any inclosure that commonable messuages or cottages formerly stood thereon, be deemed commonable messuages or cottages, and the respective proprietors 57. Determination of commissioners not appealed there of shall be entitled to the same compensation against conclusive.-Provided always, That if no such for the rights of common originally belonging thereto notice of dissatisfaction shall be given, or if no such as if such messuages or cottages were still standing. action at law shall be commenced as aforesaid, or if 54. Rights not sustainable in law to be allowed upon any such action shall be commenced, and the plaintiff proof of sixty years' usage.-That where any claim therein shall not proceed to trial within the time shall be made to any right of common or other right hereinbefore limited for that purpose, unless the Court which in the judgment of the valuer, or of the com- for sufficient cause put off the trial, then the determissioners or assistant commissioner, could not be mination of the said commissioners or assistant comsustained in law, but proof shall be made to the satis-missioner shall be final and conclusive. 58. Actions not to abate.-That if any person, plaintiff or defendant in any action to be brought as aforesaid, shall die pending the same, such action shall not abate by reason thereof, but may be proceeded in as if no such event had happened, the heir or devisee, or other person entitled to the interest of the deceased party in the matter in question, being served with process in the action; and if any person in whose favour such determination as aforesaid shall have been made, and against whom any such action might have been brought if living, shall die before any action brought, it shall be lawful for the person who might have brought such action to bring the same, within the time so limited as aforesaid, against such person as if actually living, and to serve the commissioners with process for commencing such action, in the same manner as the deceased person might have been served therewith if living, and it shall thereupon be incumbent on the commissioners to serve with such process the heir or devisee or personal representative of the deceased person, or other the person who shall claim the benefit of such determination as aforesaid; and on such process being served, such heir or devisee or personal representative, or other person, shall appear and defend such action in the name of the person so dead, and proceedings shall be had therein in the same manner as if such person had been living, and the rights, interests, and claims of all parties shall be equally bound by the event of any action so brought or continued as aforesaid as if the death of any of the persons interested therein had not occurred. 59. Commissioners may award costs.-That in case the commissioners, or any assistant commissioner appointed to hear and determine any claim or matter in pursuance of this Act, shall see cause to award any costs, it shall be lawful for the commissioners or assistant commissioner, upon application, to assess and award such costs as they or he shall think reasonable to be paid to the person in whose favour any determination of the commissioners or assistant commissioner shall have been made, and by the person whose claim or objection shall have been disallowed; aud in case any person liable to pay such costs shall neglect or refuse to pay the same upon demand, or within fourteen days thereafter, the commissioners or assistant commissioner shall, by warrant directed to any person or persons whomsoever, cause such costs to be levied by distress; and if there shall be no goods and chattels whereon to levy such costs, it shall be lawful for the person in whose favour such costs shall be awarded to recover the same by action of debt or on the case, in which action it shall be sufficient for the plaintiff to declare that the defendant is indebted to him in the sum specified in the order of adjudication made by the commissioners or assistant commissioner, and in consequence of such order, without setting forth any other proceedings under this Act. 60. Differences may be submitted to arbitration. Provided always, That in case any person hereinbefore authorized to bring an action upon a feigned issue, and the person against whom such action might be brought, shall be desirous of submitting the matter in dispute or difference to the arbitration of shall think fit. the land from which the same may be diverted, and 62. Power to alter roads and ways.-That in the 63. Appeal to quarter sessions.-That it shall be lawful for any person, within four months after the first Sunday on which such notice shall have been given on the church door of the intention that such road or way should be discontinued, stopped up, diverted, or altered, as the case may be, to make his complaint thereof by appeal to the justices of the peace at the quarter sessions for the county, riding, division, or other jurisdiction in which such road or way, or the greater part thereof, shall be situate, upon giving to the valuer fourteen days' notice in writing of such appeal, together with a statement in writing of the grounds thereof; but it shall not be lawful for the appellant to be heard in support of such appeal unless such notice and statement shall have been given as aforesaid, nor on any hearing of appeal to go into evidence of any other grounds of appeal than those set forth in such statement as aforesaid. the costs of prosecuting such appeal, and also such (To be continued.) THE MAGISTRATE. Summary. THE General Quarter Sessions of the Peace throughout the country commence next week. Again we ask the Solicitors, the Clerks of the Peace, and those who have influence with the Magistrates, both in counties and in cities and boroughs, to employ it to procure for the Profession the convenience of the announcement of their sessions in the LAW TIMES. So many counties, cities, and boroughs have already adopted this plan, that the others should follow their example, and, doubtless, would do so, were the case properly represented to them. called for, since they were written we have reIn proof that these observations are not unceived the following letter from an Attorney, who incloses his name, and the complaint is genuine : SIR,-Having just received instructions to indict a bridge in a neighbouring county at the next Quarter Sessions, I of course immediately inquired when and where the sessions are to be held; but this I could not ascertain from any publication in my office or in my house, were it not that the Clerk of the Peace of the county in question had advertised the sessions in the LAW TIMES, which supplied the information I required. If the practice were more general, it would be of important advantage to the Profession. I am, Sir, yours, &c. 8th October, 1845. A SUBSCRIBER. POOR-LAW SETTLEMENTS AND APPEALS.-The Bill ordered to be printed by the House of Commons just before the prorogation, to amend the laws relating to orders for the removal of the poor to their places of settlement, and to appeals against such orders, requires a further notice than the brief allusion made to it in the Times of Monday. It is proposed that the measure shall apply to orders of removal made on and after the 1st of May, 1846, that it shall be construed as one with the Poor-law Amendment Act, and that from the day mentioned no appeal is to be brought unless notice to appeal has been given within twenty-one days of the order made; and that the statement of the grounds of appeal shall be delivered one month at least (instead of fourteen days) before the first day of the next practicable sessions. Where witnesses reside at a distance of more than ten miles 64. Trial of appeal.-That in case of such appeal ment in another parish is made a ground of appeal, their depositions may be taken; and where a settleany arbitrator, or of any arbitrators and umpire, it the justices at such quarter sessions shall, for the pur- copies of the orders, &c., are to be forwarded to the shall be lawful for such persons to submit such pose of determining whether such public road or way other parish. With reference to the new office to matter in dispute accordingly, and such submission shall be discontinued, stopped up, diverted, or alshall be irrevocable, and the decision thereupon shall tered, or whether the party appealing would be there-be created by this measure, it is declared that the be binding on both parties, and be obeyed accordingly, by injured or aggrieved, impanel a jury of twelve disand the costs of such arbitration shall abide the interested men out of the persons returned to serve as event; and the commissioners may require each of jurymen at such quarter sessions; and if after hearing the persons in difference upon any such submission to the evidence produced before them the said jury shall arbitration to give such security for the payment of return a verdict that such road or way is unnecessary, the costs of such arbitration as the commissioners or may beneficially to the public be discontinued, stopped up, diverted, or altered, and that the party 61. Power to valuer to make watercourses, &c. appealing would not be injured or aggrieved thereby, That it shall be lawful for the valuer acting in the then the said Court shall dismiss such appeal, and matter of any inclosure to set out and make such shall award the costs of resisting the said appeal to common ponds, ditches, watercourses, embankments, be paid by the appellant to the valuer, and the same tunnels, and bridges, of such extent and form and in shall be recoverable in the same manner as any penal. such situations as he shall deem necessary, and as ties and forfeitures are recoverable under this Act; shall not be inconsistent with the terms and condi- but if the said jury shall return a verdict that such tions, and instructions hereinbefore mentioned, in road or way is not unnecessary, and that the the land to be inclosed, and also to enlarge, cleanse, same could not beneficially to the public be so or alter the course of and improve any of the existing discontinued, stopped up, diverted, or altered, or ditches or watercourses, embankments, tunnels, or that the party appealing would be injured or agbridges, as well in and over the same land as also in grieved thereby, the said Court shall allow such any ancient inclosures or other lands in the parish or appeal; and such public road or way shall not be disrespective parishes in which the land to be inclosed continued, stopped up, diverted, or altered, or in case may be situate, as the valuer shall deem necessary, the same shall have been discontinued, stopped up, making such satisfaction to the proprietors of such diverted, or altered, the said Court shall make an ancient inclosures or lands, for the damage done order restoring the same to its original state, and shall thereby, as the valuer shall think just; and the ex- award to the apppellant the costs of prosecuting such pense of making and enlarging, altering and cleans- appeal, and such costs shall be paid by the said valuer ing such ponds, ditches, watercourses, embankments, out of the moneys to be raised for the expenses of the tunnels, and bridges, when the same shall be first inclosure: provided always, that in every case in done in pursuance of this Act, if not otherwise pro- which any such appeal as aforesaid shall be made by vided for, shall be raised and paid in the same manthe surveyor of the highways of any parish or place, ner as the other expenses of the inclosure; but all under the direction of the inhabitants of such parish in such ponds, ditches, watercourses, embankments, vestry assembled, or, where there shall be no vestry tunnels, and bridges shall at all times afterwards be meeting in such place, under the direction of the inrepaired, cleansed, and maintained by such persons habitants contributing to highway rates assembled and in such manner as the valuer shall direct; pro- at any meeting of which fourteen days' notice shall vided that no watercourse be diverted or turned with- have been given by advertisement and on the church out the consent in writing of the person interested in door, then, although such appeal shall be dismissed, Home Secretary may appoint a fit person, being a practising barrister of not less than seven years' standing, who shall be called "the Barrister for Poor-law Appeals," who shall have chambers within half a mile of Temple-bar, and whose duty it shall be to regulate, arrange, and settle and amend all orders for the removal of any person to his place of settlement, and all appeals against such orders of removal, and all proceedings connected therewith which may be brought under his consideration, to the intent that such appeals shall be tried upon the merits only. In certain cases the respondents may bring the matter of appeal before the barrister for consideration, who may issue summonses, frame issues, make orders for costs, and do and perform other matters relating to his office. The payment to the new functionary is to be by fees of one guinea, and by fees to his clerk, which scale is to be settled; and in no case is the barrister to receive more than five guineas for hearing matters connected with one appeal. There are some other provisions of a general character respecting appeals. It is then proposed that relief shall be afforded to a destitute person in the same manner as if he was settled in the parish. Widows are not, without their consent, who were residing in a parish at their husband's death, to be removed within one year, neither are poor persons on account of sickness becoming chargeable to be removed, unless it shall be proved that such sickness is permanent and incurable. There are four forms annexed to the Bill. PETTY SESSIONS.-On Saturday a very lengthened parliamentary return was printed, shewing the places at which petty sessions are held throughout A great number are held at England and Wales. public-houses, which is much to be regretted, as the administration of public justice requires a different place to hold its court. In the Bill which was dis cussed last session respecting petty sessions there was a provision to prevent them in future being held in such place. The return, which was obtained on the motion of Captain Pechell, the member for Brighton, has been recalled for some corrections. THE LAWYER. Summary. No legal event of interest has occurred during the week requiring comment. COURT PAPERS. COMMON LAW SITTINGS. MIDDLESEX. Wednesday, Nov. 12 IN TERM. LONDON. Friday, Nov. 14 AFTER TERM. Wednesday, Nov. 26. Thursday, Nov. 27. N.B. The Court will sit at ten o'clock in the forenoon on each of the days in Term, and at half-past nine precisely on each of the days after Term. The causes in the list for each of the above sitting days in Term, if not disposed of on those days, will be tried by adjournment on the days following each of such sitting days. On Thursday, the 27th Nov. in London, no causes will be tried, but the Court will adjourn to a future day. kitchen in the estimation of some will present greater We practice of the Court to hear motions made by attor- DEATH OF A CHANCERY PRISONER IN THE PROMOTIONS, APPOINTMENTS, order of the governor. Mr. J. C. Harrison, deputy-sult of which was the birth of two children. A few ETC. [Clerks of the Peace for Counties, Cities, and Boroughs, will The Right. Hon. Sir N. C. Tindal, knt. has appointed Richard Ellison, of Tickhill, near Bawtry, in the county of York, gent. to be one of the Perpetual Commissioners for taking the acknowledgments of deeds to be executed by married women, under the Act passed for the abolition of fines and recoveries, in and for the West Riding of the county of York. LAW APPOINTMENT.-According to a provincial journal, Mr. John Pennefather, a young and rising barrister on the Leinster circuit, son of the Baron and brother of the Under-Secretary, has been appointed to succeed Mr. John O'Dwyer as counsel in Crown prosecutions in Green-street. SMALL DEBTS ACT.-At a very numerously attended meeting of the commissioners of the Court of Requests for St. Alban's and Watford, held at the Court House, St. Alban's, on Saturday last, Mr. Thomas Ward Blagg, of St. Alban's, town clerk, and Mr. Richard Grove Lowe, of the same place, solicitor, were unanimously appointed judges-the former of the court at St. Alban's, and the latter of the court at Watford. LEGAL INTELLIGENCE. REOPENING OF THE TEMPLE CHURCH.-The Temple Church was reopened on Sunday last for divine weekly service. It is also again open for the admission of the public at other times, by means of a bencher's order, after having been shut up five or six weeks, during which time portions of it have been re-embellished, whilst the handsome columns of Pur. beck marble which support the roof have been repolished, &c. It is stated that daily morning service will not be recommenced before the termination of the long vacation. governor, said the deceased was received into the pri- REMOVAL OF THE COURTS FROM WEST MINSTER.-It is proposed that the New Hall of Justice shall comprise not only suitable courts for the hearing and trial of causes, but commodious offices for conducting all the business of the courts, including the Masters, Registrars, Accountant-General, and in short, complete provision for every department, from the highest judges to the humblest officer. This concentration of the whole business of the courts under one roof is an admirable feature of the plan. In estimating the cost of the new building, it is an important item of set-off that the rent of all the chambers and offices now occupied in Chancerylane, Lincoln's Inn, Southampton Buildings, Staple Inn, Symond's Inn, the Rolls Yard, Lincoln's-InnFields, the Temple, and Serjeants' Inn, will all be available. Probably not less than 7,000!. or 8,000l. a year may fairly be computed as the expense of the present offices; and then there is the value of the site of the old courts at Westminster, which may be converted to excellent use in completing the Houses of Parliament. We estimate the value of the present courts and offices, calculated on 25 years' LINCOLN'S-INN NEW HALL.-Tuesday was the purchase only, at not less than 200,000l. This, we last day for viewing the new building in Lincoln's- presume, looking at the former estimates, will be inn until November next. It was closed on Wed-about the sum to be expended on the new edifice. nesday, and will be opened for the grand entertain- We give these calculations in order to show the eviment to be provided in the last week of the present month, to celebrate its erection. The foundationstone was laid in April, 1843, by his Honour Knight Bruce, who was treasurer for the year, which office has now devolved on Mr. Simpkinson. It is confidently anticipated that the Queen will honour the benchers with her presence, especially as it will afford to their ladies an opportunity to be present on the occasion, and enliven a scene which would otherwise be of a somewhat formal character by a mere assemblage of those skilled in legal lore. The building comprises the dining hall, council chamber, and library. The manner in which the works have been executed has afforded satisfaction. Perhaps the dent practicability of the plan.-Legal Observer. months since he renounced entirely his functions as a priest, and made arrangements for marrying the female in question, but the Procureur du Roi of Bellac interposed by declaring to the mayor of Bellac that such a union could not be contracted legally, and that the mayor would be liable to prosecution if he married the parties. M. Vingaud then appealed to the tribunal of Bellac, which on the 16th of June last declared the opposition of the Procureur du Roi to be unfounded in law. Against this decision the Procureur du Roi, in his turn, appealed to the Cour Royale of Limoges. In support of the appeal the Procureur-General, M. Dumont St. Priest, addressed the Court at great length, contending that no man who has been once ordained as a Catholic priest can legally contract marriage. M. Vingaud's counsel, on the other hand, contended that the law does permit the marriage of a priest who has entirely renounced that character. The judges retired, and, after a deliberation of several hours, returned into court, and stated that they differed in opinion, and could not, therefore, deliver a judgment until after the vacation. THE LATE MR. W. MASTERMAN.-This wealthy and eminent city banker has died, leaving funded and personal property, independent of his real estates, to the amount of nearly 160,000l. By bis will, which he had made some years before his death, he has bequeathed to each of Lis six children a legacy of 15,000l.; and a legacy to his sister, Mrs. Oxley, and his nephew, Henry Oxley. His library, with all the books and contents, he has left to his eldest son, Mr. John Masterman, the member for the city, to whom he has devised his estate at Leyton, where he resided, as well as all other his real estates, freehold or copyhold. The residue of his personal estate he leaves to his two sons, John and Thomas, whom he has appointed executors of the will.-Post. CORRESPONDENCE. COKE v. THOMAS AND ANOTHER. SIR,-In your report of the above case, in page 1 of your last number, I find, by the observations of Mr. Commissioner Stevenson, and of Mr. Homes, counsel for the plaintiff, that they considered the Act of Parliament referred to in 1 Blackst. 99, as establishing the point, that "where England only is men. tioned in an Act of Parliament, the same notwithstanding shall be deemed to comprehend Wales," to be an erroneous reference. I therefore take the liberty to correct the mistake into which both the above learned gentlemen have fallen, by quoting the DECISIONS UNDER THE SMALL DEBTS ACT.- words of the Act referred to by Mr. Justice Blackstone, The deputy judge at the Palace Court made an order 20 Geo. 2, c. 43, s. 3, by which it is enacted, "That in on the last court day, for the committal of a defend- all cases where the kingdom of England, or that part ant to prison for forty days, upon his default to of Great Britain called England, hath been or shall appear after personal service of a summons issued be mentioned in any Act of Parliament, the same has under the 8 & 9 Vict. c. 127. We have reason to been and shall henceforth be deemed and taken to believe that this is the first instance in which the comprehend and include the dominion of Wales and power of committal has been exercised under this Act. town of Berwick-upon-Tweed." I am not at all surA question arose as to the exclusive privilege of barris-prised that the learned commissioner and counsel ters in this Court to practise in cases under the Small Debts Act, and it was suggested that attorneys might be allowed to act as advocates in such cases, by analogy to those cases in which it was the established should have been misled, as the title of this Act is, "An Act to enforce the Execution of an Act of this Session of Parliament for granting to his Majesty several Rates and Duties upon Houses, Windows, TO THE EDITOR OF THE LAW TIMES. SIR,-My attention having been called to a letter, signed by "R. H. Aberdein," in your journal of the 27th ult., in which my name has been unwarrantably made use of as being connected with a Mr. Isaacs, I beg most distinctly to deny that I ever had any, the slightest, communication with him, nor ever heard of him until your journal was shewn me. I think it due to my own character to contradict the statement, although it was quite evident, from the tone and character of the letter, that it might with propriety be treated with contempt. THE LAW TIMES. SATURDAY, OCTOBER 11, 1845. THE SOLICITORS' INSURANCE AT length we are enabled to announce the maturity of the plan which some months ago we ventured to suggest to our readers for securing to themselves the vast profits they are now compelled to carry to others. The statement of that plan was received with very warm approval and large promises of support. It has been made the subject of anxious deliberation, and canvassed in all its details during the interval that has elapsed. It has been found to bear the test of the most rigorous examination by the most experienced men, and thus sanctioned, and with the cordial approval of many of those most interested in its success The certificate-tax is to continue for another year, and if we may judge from the tame conduct of the Profession, who have to pay this equally unjust and unnecessary imposition-for ever. In order to enable them to do so, an Act has just passed authorizing a schedule form for leases, which the lessor and lessee may now prepare without professional assistance. As far as the public is concerned, this may be perfectly just, for I consider a nation has a right to demand of its Government to render all law matters as cheap as possible; but then a nation is bound to pay its debts and perform its contracts, and where it has taken from an attorney from 300l. to 1,000l. directly and indirectly, much more on the avowed notion that the profits of his business would pay it, such nation-the Solicitors-it has been finally settled, is [Mr. Barber should prosecute Isaacs for making has no right to diminish those profits without making provisionally registered, and waits only the use of his name.-ED. LAW T.] I fully admit that the conduct of all persons is open to attack and censure in a public journal if they have misconducted themselves, yet I cannot but complain of the insertion of a letter in your journal attacking a private individual without some little investigation into the truth of the charge. I am, Sir, yours, &c. 11, Furnival's Inn, October 3, 1845. JOHN BARBER. ENGLAND AND WALES. TO THE EDITOR OF THE LAW TIMES. SIR,-In the case of Coke v. Thomas and another (Bristol District Bankruptcy Court), reported in your last number, p. 1, a question arose whether Wales is comprehended under the name of England in an Act of Parliament. His Honour on being referred to the 20th Geo. 2, c. 42, s. 3 (the statute cited by Blackstone, 1 Com. 99), said, "On looking at that statute, ferred to applies to house and window lights;" and I find there must be some mistake, for the Act re in this remark the learned counsel (Homes) con- Perhaps the correction of this error may not be out CLIENTS' PAPERS. J. W. TO THE EDITOR OF THE LAW TIMES. compensation. I have already had occasion to state, the different commencements and terminations of To Readers and Correspondents. TO OUR READERS.-During the temporary absence NOTICE TO SUBSCRIBERS. An Alphabetical Index to the Cases in the current SIR,-In reference to the questions submitted by "F." in your last number, page 10, I would observe, that, so far as an experience of some years has enabled me to judge, the usual practice" is to retain the client's papers; but which practice, in the case of abstracts, I consider entirely indefensible, except under very peculiar circumstances; as on a future disposal of the property to which they relate, the client may, in consequence, have to pay the costs of a new ab. stract, at 10s. per sheet, instead of a copy of the old one, at 3s. 4d. The method to be adopted to enforce a delivery of the documents to which a client is entitled, is by motion to the Court of which his professional adviser is an attorney. The Queen's Bench, The Subscriptions for the current half-year in Ex parte Horsefall (7 B. & C. 528), decided that an attorney had no right to the drafts and copies of are now due, and Subscribers intending to avail deeds belonging to his client, and ordered them to be themselves of the advantages of pre-payment are delivered up at the instance of a client at whose expense they were prepared, on the ground that he who requested to forward their subscriptions in the pays for the drafts has at law the right to the posses- course of the next week. sion of them.-I am, Sir, yours, &c. Gosport, Oct. 8, 1845. THOMAS HENRY FIELD. SELECTIONS FROM CORRESPONDENCE. When A. B. was articled, his master proposed that it should be for seven years instead of five; asserting that in case of his being prevented, from illness or otherwise, it would save the expense of some other document (which I believe exists only in his own imagination), and that of course if such was not the case, he would be at liberty to leave at the end of the first five years. In the articles there was reserved to A B a power to spend any year of the seven in London. A B becomes of age before the expiration of the first five years. Can A B, after spending his fifth year in town, then pass, and compel his master to sign the necessary documents to enable him so to do, should he be unwilling to do so? NOTICE. TO SUBSCRIBERS. It is proposed to publish an annual Index Legum, consisting of a digest of all the reported cases and statutes of the past year, under the title of the YEAR Book, to be bound with the volumes of the LAW TIMES, or separately, at option. It will be comprised in about six or seven numbers, at 1s. each, stamped, unless 1,000 subscribers order it. Persons desirous for transmission by post. It will not be commenced of having it are therefore requested to transmit their names as soon as possible. SCALE OF CHARGES FOR ADVERTISEMENTS. For every additional Ten Words. 0 6 with an order upon the Agent in Town, or a Post-office N. B. For Scale for Estate Advertisements, see JOURNAL completion of the list of Directors (who will be taken from among the most influential members of the Profession, and who are just now absent from town) to be formally put before the public with a view to immediate action. In the mean while, we may submit to the readers of the LAW TIMES, already made acquainted with the outlines of the plan, some further particulars afterwards introduced, with intent that they may give to it their early and at once to co-operate in its accomplishment, special attention, so that they may be prepared should it, as it can scarcely fail to do, meet their entire approval. As it is a matter of vast moment to the Profession-one which, if successful, will be an ask a little more of their time in the explanaepoch in its history-we shall be excused if we tion of it than we are wont to engage on one theme. But it is desirable that no part of the plan should be misunderstood, and minuteness is necessary to avoid mistake. The idea of the plan was suggested thus:Among the subjects affecting the welfare of the Profession, which had presented themselves in the course of our editorial duties, was the precarious station of the Solicitor, whose income was dependant upon his personal exertions, seldom large enough to enable him to save a fortune; and if sickness or death occurred prematurely, destitution was the almost certain lot of his family. This contingency, to which every member of the Profession is exposed, can only be met by a Life Assurance; but this certain payment charged upon an uncertain income is a burden so serious that many are tempted rather to risk the uncertain evil than incur the certain charge. We remembered that in the army, and among other professions, the evil was partially mitigated by the establishment of Nominee Societies, in which, by a small quarterly payment, annuities are secured to widows and children. Nothing of this kind exists among the Attorneys, although needing it as much as any. It was while seeking a remedy for this evil that the thought flashed upon us," The Attorneys yearly carry fortunes to the insuranceoffices; four-fifths of the life assurance of the country is transacted through them; if they thither the business they now take to others, would set up an office of their own, and carry they might reap the profits, and those profits would enable them to obtain, with a trifling burden, security for their families against the chances of death. They have at their command profits to an incalculable amount; these may being carried to others." be with ease secured to themselves, instead of The idea thus started was carefully digested, and then submitted to the consideration of the |